The Income Tax Officer, Abohar V. M/s Superfine Agro Industries, Abohar

MA 17/ASR/2017

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 5503 (ITAT-AMRITSAR)
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 14-07-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 13-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Condonation of delay; Bonafide mistake

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. T. S. KAPOOR, ACCOUNTANT MEM BER AND SH.N. K. CHOUDHRY, JUDICIAL MEMBER M. A. NO. 17/(ASR)/2017 (ARISING OUT OF I.T.A. NO. 203/(ASR)/2014) ASSESSMENT YEAR: 2009-10 PAN: ABKFS1193D INCOME TAX OFFICER, WARD- II (3), ABOHAR. VS. M/S. SUPERFINE INDUSTRIES, BURJ MOHAR ROAD, ABOHAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. RAHUL DHAWAN (D.R. ) RESPONDENT BY: SH. SUDHIR SEHGAL DATE OF HEARING: 25.08.2017 DATE OF PRONOU NCEMENT: 30.11.2017 ORDER PER T. S. KAPOOR (AM): THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY RE VENUE AGAINST THE ORDER OF THE TRIBUNAL DATED 10.03.2016. 2. AT THE TIME OF HEARING THE LD. AR RAISED PRELIM INARY OBJECTION TO THE FILING OF MISCELLANEOUS APPLICATION BY REVENUE AND SUBMITTED THAT THE DEPARTMENT HAS FILED MISCELLANEOUS APPLICATION AFTE R A PERIOD OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE HON'B LE TRIBUNAL HAD PASSED ORDER AND WHICH IS NOT PERMITTED AND NEEDS T O BE DISMISSED IN VIEW OF THE AMENDED PROVISIONS BY WHICH THE PERIOD OF FILING OF MISCELLANEOUS APPLICATION HAS BEEN REDUCED FROM 4 Y EARS TO SIX MONTHS. THE LD. AR SUBMITTED THAT THE APPLICATION OF REVENU E SEEKING THE CONDONATION OF DELAY ITSELF PROVES THAT THE MISCELL ANEOUS APPLICATION IS TIME BARRED AND THEREFORE WITHOUT GOING INTO THE ME RITS OF THE CASE IT NEEDS TO BE DISMISSED. RELIANCE IN THIS RESPECT WAS PLACED ON A MA NO. 17 (ASR)/2017 (ARISING OUT OF I.T.A. NO.203/(ASR)/2014 ASST. YEAR:2009-10 2 CONSOLIDATED ORDER OF MUMBAI BENCH WHEREIN UNDER SI MILAR FACTS AND CIRCUMSTANCE, THE HON'BLE TRIBUNAL VIDE ITS ORDER D ATED 25.04.2017 HAD DISMISSED THE MISCELLANEOUS APPLICATION FILED BY RE VENUE WHICH WAS TIME BARRED 3. THE LD. DR ON THE OTHER HAND SUBMITTED THAT DUE TO BONAFIDE MISTAKE THE APPLICATION COULD NOT BE FILED WITHIN S IX MONTHS AS THE DEPARTMENT WAS UNDER IMPRESSION THAT A PERIOD OF 4 MONTHS STILL EXISTED FOR FILING THE MISCELLANEOUS APPLICATION AND IT WAS PRAYED THAT IN THE INTEREST OF SUBSTANTIAL JUSTICE, THE DELAY BE CONDO NED AND M. A. BE HEARD ON MERITS. 4. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE ARE IN AGREEMENT WITH THE LD. AR REGARDING HIS PRELIMINARY OBJECTION TO FILLING OF M ISCELLANEOUS APPLICATION AS THE SAME HAS BEEN FILED BEYOND A PERIOD OF SIX M ONTHS FROM THE END OF MONTH IN WHICH THE ORDER OF THE TRIBUNAL WAS PASSED . THE HON'BLE TRIBUNAL IN THIS CASE HAD PASSED ORDER ON 10.3.2016 AND WHEREAS THE M. A. HAS BEEN FILED BY REVENUE IN THE MONTH OF JANUAR Y, 2017. THE PERIOD OF SIX MONTHS EXPIRED IN SEPTEMBER, 2016 AND THEREF ORE THE MISCELLANEOUS APPLICATION FILED BY REVENUE IS NOT M AINTAINABLE. THE HON'BLE TRIBUNAL MUMBAI BENCH IN A CONSOLIDATE D ORDER IN MISCELLANEOUS APPLICATION NO. 103 TO 108 VIDE ITS O RDER DATED 25.04.2017 HAS DISMISSED THE MISCELLANEOUS APPLICATIONS FILED BY REVENUE HOLDING THE SAME TO BE TIME BARRED. FOR THE SAKE OF COMPLET ENESS, THE FINDINGS OF THE HON'BLE TRIBUNAL ARE REPRODUCED BELOW: MA NO. 17 (ASR)/2017 (ARISING OUT OF I.T.A. NO.203/(ASR)/2014 ASST. YEAR:2009-10 3 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED RELEVANT MATERIAL ON RECORD. SINCE, PRELIMINARY LEGAL OBJECTIONS QUES TIONS THE VERY ADMISSIBILITY OF THESE RECTIFICATION APPLICATIONS, WE TAKE UP THE SAME FIRST. FOR RECORD, WE NOTE THAT THE DATE OF ORDER PASSED B Y THE TRIBUNAL IS 22/03/2013 AND THE REVENUE HAS FILED THESE APPLICAT IONS ON 28/02/2017 WHICH ARE CLEARLY BEYOND A PERIOD OF SIX MONTHS AS PROVIDED IN SECTION 254(2). AT THIS JUNCTURE, IT WOULD BE PRUDENT TO RE PRODUCE THE RELEVANT PROVISIONS AS CONTAINED IN SECTION 254(2) OF THE IN COME TAX ACT, 1961:- ORDERS OF APPELLATE TRIBUNAL. 254. (1) THE APPELLATE TRIBUNAL MAY, AFTER GIVING B OTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORD ERS THEREON AS IT THINKS FIT. (1A)[***] (1) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED, WIT H A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORD ER PASSED BY IT UNDER SUB-SECTION (1), AND SHALL MAKE SUCH AMENDMEN T IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESS ING OFFICER: IT IS TO BE NOTED THAT THE EARLIER PERIOD OF FOUR YEARS HAS BEEN SUBSTITUTED WITH SIX MONTHS BY THE FINANCE ACT, 2016 WITH EFF ECT FROM 01/06/2016. HOWEVER, WE FIND THAT NO DISTINCTION HAS BEEN MADE IN THIS SECTION BETWEEN ORDERS PASSED BEFORE 01/06/2016 AND ORDERS PASSED AFTER 01/06/2016. MOREOVER, THE TRIBUNAL ORDER WAS DATED 22/03/2013 AND THEREFORE, THE REVENUE HAD AMPLE TIME TO GO THROUGH THE SAME AND PIN POINT THE MISTAKES IN THE ORDER BUT IT HAS FAILED T O DO SO, THEREFORE, WE FIND NO FORCE IN THESE MISCELLANEOUS PETITIONS PRIMARILY BECAUSE OF THE REASON THAT THE STATUTE DOES NOT AUTHORIZE US TO ENTERTAIN ANY PETITION WHICH HAS BEEN FILED U/S 254(2) AT ANY TIME BEYOND A PERIOD O F SIX MONTHS FROM THE DATE OF THE ORDER. THE TRIBUNAL HAS BEEN GIVEN POWE R TO ADMIT AN APPEAL AFTER THE EXPIRY OF THE RELEVANT PERIOD, IF IT IS S ATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD AS PER SECTION 253(5). HOWEVER, THIS TRIBUNAL IS NOT ENSHRINED WIT H SUCH POWERS IN RESPECT OF A MISCELLANEOUS PETITION FILED U/S 254(2 ) OF THE INCOME TAX ACT. IF WE ARE NOT GIVEN THAT POWER, THEN IT IS NOT EXPE CTED FROM US TO EXERCISE SUCH POWER WHICH IS NOT PROVIDED IN THE ACT. THE TR IBUNAL, BEING CREATION OF LAW, IS BOUND BY THE STATUTORY PROVISIONS AND OU R JURISDICTION IS SIMPLY TO INTERPRET AND FOLLOW THE STATUTE. THERE IS NO SC OPE FOR US TO IMPORT ANY WORD INTO THE STATUTE WHICH IS NOT THERE. SUCH IMPO RTATION WOULD BE NOTHING BUT TO AMEND THE STATUTE. WE THEREFORE HOLD THAT THE CONDONATION OF DELAY OF THESE PETITIONS IS BEYOND OUR JURISDICT ION, HENCE REJECTED. SIMILAR VIEW HAS BEEN TAKEN BY THE MUMBAI TRIBUNAL IN THE CITED ORDER. HENCE, FINDING THE PETITIONS TIME BARRING, WE DISMI SS THE SAME. 5. IN NUTSHELL, ALL THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE STANDS DISMISSED. RESPECTFULLY FOLLOWING THE ABOVE AND KEEPING IN VI EW THE FACTS AND CIRCUMSTANCES OF THE CASE, THE PRESENT MISCELLANEOU S APPLICATION FILED BY MA NO. 17 (ASR)/2017 (ARISING OUT OF I.T.A. NO.203/(ASR)/2014 ASST. YEAR:2009-10 4 REVENUE IS NOT MAINTAINABLE AND THEREFORE WITHOUT G OING INTO THE MERITS OF THE MISCELLANEOUS APPLICATION, THE SAME IS DISMI SSED. 5. IN NUTSHELL, THE MISCELLANEOUS APPLICATION FILED BY REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.11. 2017. SD/- SD/- (N. K. CHOUDHRY) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 30/11/2017 GP/SR./PS COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER